Author: Neville Harris
ISBN: 1-84113-252-7 / 9781841132525
Publishers: Hart Publishing
Publication Date: December 2006
Publisher’s Title Information
Neville Harris is Professor of Law at the University of Manchester.
Incivilities Regulating Offensive Behaviour
Author: Edited by Andrew Simester and Andrew von Hirsch
ISBN: 1-84113-499-6 /9781841134994
Publishers: Hart Publishing
Publication Date: October 2006
Publisher’s title Information
Prohibitions against offensive conduct have existed for many years, but their extent and use was on the decline. Recently, however,
several jurisdictions, including England and Wales, have moved to broaden the
reach and severity of measures against incivilities. New measures include
expanded targeting of unpopular forms of public conduct, such as begging, and
legislation authorising magistrates to issue prohibitory orders against
anti-social behaviour. Because these
quality-of-life prohibitions can be so restrictive of personal liberties, it is
essential to develop adequate guiding and limiting principles concerning State
intervention in this area.
This book addresses the legal regulation of offensive behaviour. Topics include: the nature of offensiveness; the grounds and permissible scope of criminal prohibitions against offensive behaviour; the legitimacy of civil orders against incivilities; and identifying the social trends that have generated current political interest in preventing incivilities through intervention of law.
These questions are addressed by eleven distinguished philosophers, criminal law theorists, criminologists, and sociologists. In an area that has attracted much public comment but little theoretical analysis to date, these essays develop a fuller conceptual framework for debating questions about the legal regulation of offensive behaviour
Andrew Simester is Professor of Legal Philosophy at the University of Nottingham.
Andrew von Hirsch is Honorary Professor of Penal Theory and Penal Law, and Honorary Fellow of Wolfson College, at the University of Cambridge.
Self-Defence in Criminal Law
Author: Boaz Sangero
Publishers: Hart Publishing
Publication Date: July 2006
This book combines a careful philosophical discussion of the rationale justifying self-defence with a detailed discussion of the range of statutory self-defence requirements, as well as discussions of numerous other relevant issues (i.e. putative self-defence, excessive self-defence, earlier guilt and battered women). The book argues that before formulating definitions for each aspect of self-defence (necessity, proportionality, retreat, immediacy, mental element, etc.) it is imperative to determine the proper rationale for self-defence and, only then to derive the appropriate solutions. The first part contains an in-depth discussion of why society allows a justification for acts but does not excuse the actor from criminal liability, and the author critically analyzes current theories (culpability of the aggressor; autonomy of the attacked person; protection of the social-legal order; balancing interests; choice of the lesser evil) and points out the weaknesses of each theory before proposing a new theory to explain the justification of self-defence. The new theory is that for the full justification of self-defence, a balance of interests must be struck between the expected physical injury to the attacked person and the expected physical injury to the aggressor, as well as the relevant abstract factors: the autonomy of the attacked person, the culpability of the aggressor, and the social-legal order. The author demonstrates how ignoring one or more of these factors leads to erroneous results and how the proposed rationale can be applied to develop solutions to the complex questions raised.
Boaz Sangero is Head of the Department of Criminal Law and Criminology at the Academic College of Law, Ramat Gan, Israel, and a member of the Israeli Bar.
The principal objective of 'Self-Defence in Criminal Law' is to offer its reader 'an in-depth discussion of the rationale for self-defence' (Sangero, 2006:i). This is founded upon the notion as to why society simply does not excuse self-defence actions from criminal liability. The author seeks to critically analyse four theories governing the role of private defence based on: the culpability of the aggressor, the autonomy of the attacked persons, the protection of the social legal order and the choice of lesser evils. The writer seeks to exemplify the weaknesses of each theory mentioned whilst offering the reader with an analytical debate recommending an innovative conjecture that is for the complete rationalization of self-defence. The new argument is founded on a dichotomous concern relating to the expected physical injury to the attacked person versus the expected physical injury to the aggressor in relation to theories of: the protection of social order, the culpability of the aggressor and the autonomy of the attacked person. Thus, exemplifying the current flaws in the legislation governing the defence.
The book is divided into five parts. The first section elaborates on the ‘the rationale of private defence’ whilst the second and third parts draw attention to the concerns of 'private defence: a comparative analysis' and 'the elements of private defence'. The final two sections consider the ‘internal distinctions in private defence’ and ‘additional issues in private defence’.
The first part of 'Self-Defence in Criminal Law' acts as an introductory dialogue to the concerns of private defence. The discussion is embedded within a philosophical, religious and historical debate that serves to provide an insight into the origins of the mechanics of how the defence has developed over time. The author considers the influence of duress in conjunction to distinguishing between the role of justification and excuse within private defence.
The second section considers the complex nature of private defence by utilising a brief discussion on American and English law. The ambiguous role of the defence is taken into account in which the author draws parallels and distinctions between the two-abovementioned legal systems, in particular in relation to proportionality, the role of juries in understanding the complex nature of self-defence and lethal force.
The third dialogue introduces the reader to the elements of private defence and the concepts of necessity, immediacy and retreat. This is debated in parallel to the mens rea and the actus reus required to be found guilty of the offence. The discussion focuses predominantly on the role of self-defence against the person whilst presenting the reader with an insight into the operation of the defence in relation to attacks in a property, against police officers, in defence of another person and circumstances of self-defence caused by own fault. These cases are discussed in relation to the author drawing upon existing law reform debates.
The fourth segment draws attention to two main factors. The first element considers the implementation of private defence of another person, based on concerns of justification, proportionality, necessity and the mens rea. The second aspect introduces the reader to the 'duty to rescue', which centres on the notion of property. The author considers the issues of mistake, proportionality and immediacy whilst drawing attention to the possible extension of employing private defence against a dwelling.
The final section presents the reader with an in-depth discussion concerning the issue of mistake. The author covers the issue of mistake in relation to intoxification and a mistake in law to consider whether unreasonable mistakes should lead to full criminal responsibility. The writer also introduces the reader to the concerns underpinning the concept of 'battered woman syndrome'. This factor is succinctly discussed in parallel to the conditions needed to successfully employ the defence, expert testimony and issue of legal loopholes within the notion of the ‘battered woman syndrome’.
In evaluation, 'Self-Defence in Criminal Law' presents it reader with an easy to follow yet highly comprehensive dialogue concerning private defence. The book has a global reach through its consideration of different legal systems and challenges to the private defence based on a discussion on EU, Australian and American case law. However, unlike most reference books on criminal law, the structure of the book would have been improved if the reader had been provided with a list of cases and statutes at the beginning of the discussion, for ease of reference. Nonetheless, it is an intriguing discussion, which offers its readers a complete picture of private defence, whilst also addressing current flaws in its utilisation and providing possible solutions to rectify the loopholes in the defence.
Sangero, B. (2006). Self-Defence in Criminal Law. Oregon: Hart Publishing.
Human Rights Law
Author: Merris Amos
Publishers: Hart Publishing
Publication Date: March 2006
Publisher's Title Information
Human Rights Law is the
first book in which the interpretation and application of the Human Rights Act
1998 by the courts in England and Wales is comprehensively examined and
analysed. Part I of the book concerns the Human Rights Act itself including the
background to the Act and key principles of interpretation. Also examined in
this part are: the benefit and burden of Convention rights; the identification
of activities to which the Act applies; the process of determining
incompatibility, encompassing the principles of proportionality and judicial
deference; and the defence of primary legislation. This part concludes with a
discussion of the remedies available for a breach of Convention rights
including a detailed examination of the power to award damages under the Act.
In Part II of the book, the application and interpretation of the Convention rights themselves by the courts in England and Wales is examined. Included in this part are: the right to life; the right to freedom from torture and inhuman or degrading treatment or punishment; the right to liberty; the right to a fair trial; the rights to respect for private life, family life and home; the right to freedom of expression; the prohibition of discrimination in securing Convention rights; and the right to the peaceful enjoyment of possessions. Each right is considered separately with a particular focus on its interpretation and practical application in the domestic context.
Human Rights Law will be of particular interest to teachers and students of domestic human rights law, constitutional law and administrative law. It will also be of considerable relevance to practitioners working in the area.
Merris Amos is a member of the Department of Law and the Human Rights Centre at the University of Essex. For many years she has also been the Director of the Human Rights Centre's successful undergraduate programme. She has more than ten years of research, teaching and practical experience on the subject of the protection and promotion of human rights at the domestic level and has published widely in the area. Her field of particular expertise is the interpretation and application of the United Kingdom's Human Rights Act 1998.
The Trial on Trial, Volume One
Author: Edited by Antony Duff, Lindsay Farmer, Sandra Marshall and Victor Tadros
Publishers: Hart Publishing
Price £35 RRP UK
Publication Date: 2004
The trial is central to the institutional framework of criminal justice. It provides the procedural link between crime and punishment, and is the forum in which both guilt and innocence and sentence are determined. Its continuing significance is evidenced by the heated responses drawn by recent government proposals to reform rules of criminal procedure and evidence so as to alter the status of the trial within the criminal justice process and to limit the role of the jury. Yet for all of the attachment to trial by jury and to principles safeguarding the right to a fair trial there has been remarkably little theoretical reflection on the meaning of fairness in the trial and criminal procedure, the relationship between rules of evidence, procedure and substantive law, or the functions and normative foundations of the trial process. There is a need, in other words, to develop a normative understanding of the criminal trial.
The book is based on the proceedings of two workshops which took place in 2003, addressing the theme of `Truth and Due Process in the Criminal Trial'. The essays in the book are concerned with the question of whether, and in what sense, we can take the discovery of truth to be the central aim of the procedural and evidential rules and practices of criminal investigation and trial. They address four distinct but inter-related issues: models of the trial (Duff, Jackson, Matravers, McEwan); the meaning of due process (Dubber); the meaning of truth and the nature of evidence (Jung, Pritchard); and legitimacy and rhetoric in the trial (Burns, Christodoulidis).
Notes on Contributors
Robert P Burns is Professor of Law at Northwestern University in Chicago, where he teaches courses in evidence, procedure, jurisprudence, and legal ethics. He is the author of A Theory o f the Trial (1999) and other books and articles in the philosophy of law, evidence, ethics, and alternative dispute resolution.
Emilios Christodoulidis is Reader in Law at the University of Edinburgh. He teaches jurisprudence and sociology of law, and his research interests include the philosophy of public law, the study of transititional justice, systems theory, etc. His book, Law and Reflexive Politics (1998) won the European Award in Legal Theory and the 1998 SPTL Award for Outstanding Legal Scholarship and has been translated into Japanese.
Markus Dirk Dubber is Professor of Law and Director of the Buffalo Criminal Law Center at SUNY Buffalo. He edits the Buffalo Criminal Law Review and writes on criminal law, comparative law, and legal history. His books include Victims in the War on Crime: The Use and Abuse of Victims' Rights (2002), Criminal Law: Model Penal Code (2002), and The Police Power: Patriarchy and the Foundations of Criminal Lau) (forthcoming 2005).
Antony Duff is a professor in the Department of Philosophy at the University of Stirling. He works mainly in penal theory and in the philosophy of criminal law; apart from the project on the criminal trial, his main current project is on structures of criminal liability. He has published Trials and Punishments (1986), Intention, Agency and Criminal Liability (1990), Criminal Attempts (1996), and Punishment, Communication, and Community (2000).
Peter Duff is Professor of Criminal justice in the law school at Aberdeen University. He has published widely in the area of criminal justice, often writing from a Scottish perspective, and has carried out several empirical studies for the Scottish executive designed to evaluate reforms to the criminal justice process. In addition, he is a member of the Scottish Criminal Cases Review Commission.
Lindsay Farmer is Professor of Law at the University of Glasgow. He is the author of Criminal Law, Tradition and Legal Order (1997), and co-editor (with S Veitch) of The State of Scots Law (2001). He has written a number of articles on the theory and history of criminal law and is currently working on a history of the criminal trial in the late nineteenth century.
John Jackson is Professor of Public Law and Director of the Institute of Criminology and Criminal Justice at Queen's University Belfast. He has written books and articles on evidence and criminal justice and is on the editorial board of the International Journal o f Evidence and Proof. In 1998-2000 he was an independent assessor on the Northern Ireland Criminal Justice Review which was established under the Belfast Agreement to review the Northern Ireland criminal justice system.
Heike Jung is a professor in the Faculty of Law and Economics, Universitat des Saarlandes. He has published widely on criminal law, criminal process and criminal policy, as well as on medical law, European law and comparative law; he also served for fourteen years as a judge in the Landgericht and the Oberlandesgericht in Saarbriicken.
Sandra Marshall is a professor in the Department of Philosophy at the University of Stirling and a deputy principal of the university. She has published on a range of topics in legal, political and social philosophy, and is currently working on issues concerning the status of victims in the criminal process. She is co-editor of the journal o f Applied Philosophy.
Matt Matravers teaches political philosophy and is Director of the Morrell Studies in Toleration Programme at the University of York. He is the author of justice and Punishment (2000) and the editor of Punishment and Political Theory (1999), Scanlon and Contractualism (2003), and Managing Modernity: Politics and the Culture o f Control (forthcoming). He is currently working on a book, Responsibility Within justice to be published by Polity Press in 2005.
Jenny McEwan is Professor of Criminal Law at Exeter University. She has published widely on issues related to the function and efficacy of the criminal trial. This has led to involvement in some campaigning BBC television programmes. Her books include Evidence and the Adversarial Process: the Modern Law (1998) and The Verdict o f the Court: Passing Judgment in Law and Psychology (2003).
Duncan Pritchard is Lecturer and Leverhulme Special Research Fellow in the Department of Philosophy at the University of Stirling. He has published widely in epistemology, including recent articles in American Philosophical Quarterly, Synthese, and The European Journal of Philosophy. He is the editor (with Michael Brady) of Moral and Epistemic Virtues (Blackwell, 2003) and is currently in the process of completing a book entitled Epistemic Luck.
Victor Tadros is Lecturer in Law at the University of Edinburgh. He teaches and researches in criminal law and legal theory. He was educated at the universities of Oxford and London and has previously held a lectureship at the University of Aberdeen. He is currently writing a book entitled Criminal Responsibility.
The Trial on Trial: Volume 2, Judgment and Calling to Account
Edited by Antony Duff,Lindsay Farmer, Sandra Marshall and Victor Tadros
Publishers: Hart Publishing
Publication Date: April 2006
What are the aims of a criminal trial? What social functions should it perform? And how is the trial as a political institution linked to other institutions in a democratic polity? What follows if we understand a criminal trial as calling a defendant to answer to a charge of criminal wrongdoing and, if he is judged to be responsible for such wrongdoing, to account for his conduct? A normative theory of the trial, an account of what trials ought to be and of what ends they should serve, must take these central aspects of the trial seriously; but they raise a number of difficult questions. They suggest that the trial should be seen as a communicative process: but what kinds of communication should it involve? What kind of political theory does a communicative conception of the trial require? Can trials ever actually amount to more than the imposition of state power on the defendant? What political role might trials play in conflicts that must deal not simply with issues of individual responsibility but with broader collective wrongs, including wrongs perpetrated by, or in the name of, the state? These are the issues addressed by the essays in this volume. The third volume in this series, in which the four editors of this volume develop their own normative account, will be published in 2007.
Antony Duff is Professor of
Philosophy at the University of Stirling.
Lindsay Farmer is Professor of Law at the University of Glasgow.
Sandra Marshall is Professor of Philosophy in the University of Stirling.
Victor Tadros is a Lecturer in Law at the University of Edinburgh.
This is the second book in a three-set academic series, exploring the jurisprudence of trials. It has a distinct European/Germanic flavour. It has fourteen chapters, each one a paper written by an academic. This volume consists of a set of theoretical examinations of 'the trial', questioning whether 'the trial' is always a 'fair trial'; alternatives to 'the trial'; and 'the trial' under the common law legal system (as in the UK and US - although the UK is not mentioned) as against 'the trial' under the civil law system of most of continental Europe.
Chapter 2 is contributed by Mireille Hildebrandt and deals with criminal trials of offenders who committed acts of violence. The author discusses 'fair trial' as per the European Convention on Human Rights, Article 6. The argument in this chapter asserts that 'the trial' is both a means of identifying a defendant as an offender and of protecting defendants against abuse of state powers. It goes on to state that this implies "more than a mechanical search for truth because it involves censure of the criminal act".
I totally agree with this, and examining the German legal system which is an inquisitorial legal system, illustrates the first point that the author makes, that the trial is more than a mechanical search for truth. The principle of the immediacy of evidence does not normally allow trials in the defendant’s absence (Abwesenheitsverfahren) but only when the offence carries a minor sentence. A practising lawyer or a professor of law may be nominated as counsel for the defence at public expense. As far as evidence is concerned, German procedure is guided by the principle of investigation or the principle of factual truth, which obliges a judge to seek out the truth in a case and to form an inner conviction without being bound by the statements recorded at the hearing. The result of this is that the accused gets the benefit of any doubt.
Chapter 2 continues with the assumption that 'the trial' is a nexus between human action and legal norms, legal norm being referred to in a footnote which refers to Volume 1 one of the series, page 21. This is somewhat exasperating and although it neatly ties the volumes one and two together, they are separate books and may not have both been purchased. It continues with a paragraph about normative and imperative dimensions of legal norms, (legal norm, as per page 21, Volume 1). Discussion continues and includes Wittgenstein’s "Philosophical Investigations", (in my opinion, somewhat high-brow Austrian philosophy).
What strikes me in Chapter 2, is the method of writing, which, although it alludes to an exploration of the topic, explains and instructs, rather than flowing to analysis and exploration. The author informs about the workings of ‘the trial’ in three types of theoretical societies:
The non-state society of free men;
The society ruled by government; and
The society under the rule of law.
The author says that in non-state societies, jurisdiction is voluntary and proceedings oral. She says that in a society ruled by government, the state "holds a monopoly on violence and the competence to issue general commands in the form of legal rules", (thereby making his second and third types of societies the same, in my opinion). She says that this makes for the inquisitorial trial, which centres on the written file and the implementation of the written law, which, she holds, is the third type of society (ie, the society under the rule of law). No more is said on this third type of society.
This Chapter 2 then continues by instructing the reader on what a ‘fair trial’ is, then refers to citizenship, equality and community as enunciated by John Rawl, who was Professor of Philosophy at Harvard University at the time of writing his book. Professor Rawl termed it the ‘veil of ignorance’ in his book, J.Rawls, A Theory of Justice, (Oxford, OUP 1999). Professor Rawl’s theory is that citizens have to reinvent the 'criminal trial' in a way that produces ‘the freedom, equality and community that fit with the democratic constitutional state’. In Professor Rawl’s book on moral philosophy, is set out his theory of the principles of justice that free and rational persons would accept in a position of equality. Professor Rawl’s theory is that in a hypothetical situation, no-one knows his place in society, his class, position or social status, and thus has no concept of good, and so, deliberating behind a veil of ignorance, men determine their rights and duties.
The author of Chapter 2 continues by examining the state of the defendant/offender and that of the victim also. The author asserts that the victim has no legal standing in the inquisitorial system. I beg to differ however. The many European states’ inquisitorial legal systems, eg. France and Germany allow for the victim to bring a criminal prosecution; allows for seizure of assets for victim compensation and in France, allows the victim to fully participate in the criminal process and trial.
The author of Chapter 2 states that in the US with its adversarial legal system, the victim has no legal standing and that in the US, 'legal standing' is a "technical juridical term that refers to the constitutional right to file a lawsuit in a federal court". She steers clear of the concept of plea-bargaining which, in fact, keeps ninety percent of criminal cases away from the US criminal courts.
However, the author’s reasoning comes full circle when she states that, as regards crimes of violence, 'punishment and trial' set the victim free to mourn the harm done and "to pick up on life without the burden of revenge". She cites the 1985 Council of Europe Recommendation R (85)/11, 'on the position of the victim in the framework of criminal law and procedure' to affirm that as long as the state can protect its citizens as potential victims, then the criminal law creates a freedom that depends on the denial of 'legal standing' of the victim. I do not agree with this assertion and many now view the modern state as a blend of the adversarial and inquisitorial legal systems, diluting the distinctions that make for such tortuous academic reasoning. Nevertheless, this chapter and all thirteen others in the book, presented an enjoyable and difficult exercise in legal reasoning.
The fourth chapter consists of a paper entitled "The trial and its alternatives as Speech situations". This Chapter is the contribution of Evi Girdling (a trained anthropologist who writes on topics such as fear of crime, identity and punishment and children’s understandings of justice and punishment; the other contributors of this chapter being Marion Smith (a language sociologist) and Richard Sparks, whose previous writings are on the topic of the sociology of punishment.
Chapter 7- "It’s good to talk- speaking rights and the jury", is contributed by Burkhard, Schafer and Wiegand. Schafer has published widely on the interface between the natural sciences, computer technology and the law whilst Wiegard writes on semantics, although he previously studied German Jewry.
It is therefore a challenging read and I wholly recommend this series of books about the 'trial on trial'.
With Malice Aforethought
Authors : Louis Blom-Cooper & Terence Morris
Publishers: Hart Publishing
Price £20 RRP UK
Publication Date: 2004
For more than three centuries the criminal law has given rise to a divergent set of approaches to the crime of homicide. Whereas the law of murder has not conceptually changed, the crime of manslaughter has resulted in some forms of homicide being visited with relatively minor penalties. These various categories of unlawful killing present considerable problems relating to intention, or lack of it, and the culpability of those whose behaviour, while lacking in evident malice, is characterised by the grossest recklessness. The reaction of the relatives of victims is generally simpler. They frequently find it impossible to understand how those who kill by dangerous or drunken driving may receive comparatively lenient sentences, while those convicted of manslaughter following a drunken brawl may be dealt with more severely, and yet others, convicted of so-called 'mercy killings', are subject to the mandatory penalty of life imprisonment.
This book addresses the powerful and controversial arguments for the current distinctions between murder, manslaughter and other specific categories of crime to be abolished and subsumed within a single crime of culpable homicide. In the course of this analysis the authors consider a number of issues of great contemporary importance, including the presentation of expert evidence in cases involving unexplained infant death, corporate killing, and the question of the defences available to the accused, including self-defence and provocation, where popular notions of what is reasonable or justifiable may be at variance with legal precedent.
While this book aims to consider criminal homicide in its social, historical and legal setting, it also goes far beyond in setting out the case for radical reform.
Prologue and Apologia
What This Book Is About
Lord Mustill in his judgment delivered in the House of Lords in July 1997 used these words:
“Murder is widely thought to be the gravest of crimes. One could expect a developed system to embody a law of murder clear enough to yield an unequivocal result on a given set of facts, a result which conforms with apparent justice and has a sound intellectual base. This is not so in England, where the law of homicide is permeated by anomaly, fiction, misnomer and obsolete reasoning. One conspicuous anomaly is the rule which identifies the "malice aforethought" (a doubly misleading expression) required for the crime of murder not only with a conscious intention to kill but also with an intention to cause grievous bodily harm. It is, therefore, possible to commit a murder not only without wishing the death of the victim but without the least thought that this might be the result of the assault. Many would doubt the justice of this rule, which is not the popular conception of murder and (as I shall suggest) no longer rests on any intellectual foundation. The law of Scotland does very well without it, and England could perhaps do the same
Judgment of Lord Mustill in Attorney General's Reference [No.3 of 19941, [19981 AC 245, at 250 D2F. The Law Commission, in its report Partial Defences to murder (Law Com No 290, 2004) was more sparing in its language. It called the law of murder 'a mess'.
In an earlier work, he observed:
“Murder produces a sense of profound social shock-heightened in our society by the dissemination of the details through modern mass media. It can normally he relieved only by some highly dramatic act on the part of the community towards the offender, Terence Morris and Louis Blom-Cooper, A Calendar of murder (London, Michael Joseph, 1964) at 272.
Definition In The Criminal Law
Author: Andrew Halpin
Publishers: Hart Publishing
Price £25 RRP UK
Publication Date: 2004
In recent years, a number of key terms of the criminal law have seemed to defy definition. Scepticism over the possibility of defining basic concepts and identifying general principles has been voiced by both judges and academic commentators. The condition of the criminal law raises broad issues of theoretical interest, but also touches on practical concerns such as proposals for reform made by the Law Commission, the campaign for codification, and the requirement of legality under Article 7 of the ECHR, given greater prominence since the implementation of the Human Rights Act 1998.
This book undertakes an investigation of the role and scope of definition within the criminal law set within a wider examination of the nature of legal materials and the diversity of perspectives on law. It offers a fascinating account of how the rules and principles found within legal materials provide practical opportunities for responding to, rather than merely following the law. This opens up a richer notion of legal doctrine than has been acknowledged in earlier representations of the workings of legal rules and principles. It also leads to a rejection of some of the established views on the roles of judges and academics, and provides the incentive for a more rigorous assessment of the serious challenge made by a 'critical' perspective on the criminal law.
The intimate connection between the use of legal materials and the practice of definition is explored through a number of detailed studies. These deal with some of the apparently intractable problems concerning the definition of theft, and changes to the definition of recklessness culminating in the recent decision of the House of Lords in R v G. Theoretical insights on the different features of the process of definition and a remodelling of culpability issues are combined to question the conventional intellectual apparatus of the criminal law. The approach developed within the book offers a more realistic appraisal of the feasibility of reform, and of expectations for the principle of legality within the criminal law.
From the Author’s Preface
Some books are organised like a Teutonic banquet. This book adopts the more modest organising principles of a Russian zakouski, spreading out on the table such a variety of hors d'oeuvres that everyone will find something to their taste. I hope that anyone with an interest in the law, whether or not they are concerned particularly with the criminal law, whether or not they have reflected previously on the process of legal definition, will find something of interest in its pages.
I have used in chapters 3 and 4 material previously published in the following articles: 'The Appropriate Appropriation'  Criminal Law Review 426; 'The Test for Dishonesty'  Criminal Law Review 283; and 'Definitions and directions: recklessness unheeded' (1998) 18 Legal Studies 294.
Publication Date: 2004
The write-up inside the dust jacket tells us that, 'in recent years, a number of key terms of the criminal law seems to defy definition'. Definitions in criminal law did for many years play a very important part in my employment as a Police Officer. How you defined a particular word or particular offence was very important. Police Officers make arrests, often based upon whether the facts fit the offence as defined.
This book is not aimed at Police studies since it is an academic study of definitions, which after general discussion concentrates on 'recklessness' and 'dishonesty' under the Theft Act.
Any discussion of recklessness must start with R v Cunningham  2 All ER 412, which was the earliest definition as I learnt it. Briefly in Cunningham, we were told that it meant that the accused had foreseen that that particular type of harm might be done, and yet had gone on to take the risk of it. Cunningham, is an easy case to remember, if you remember 'C', the defendant tore a gas metre from the wall of a cellar of an unoccupied house to steal money in it. The obvious happened, obvious to me anyway, gas seeped into a neighbour’s house and endangered life. The charge was s 23 of the Offences against the Person Act, 1861.
The Law Report puts it this way. The word "maliciously" in a statutory crime postulates foresight of consequence, and requires either an actual intention to do the particular kind of harm that in fact was done or recklessness whether such harm should occur or not; it is neither limited to, nor does it require, any ill-will towards the person injured.
Held – The conviction should be quashed, because it was incorrect to say that the word "malicious" in a statutory offence meant "wicked" and it should have been left to the jury to decide whether, even if the appellant did not intend the injury to W., he foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it.
However Lord Diplock said in Caldwell  1 All ER 961 ‘ that a person is reckless whether any property would be destroyed or damaged
"... if (1) he does an act which in fact creates an obvious risk that property would be destroyed or damaged and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it."
In Lawrence  1 All ER 974, a decision given on the same day by a differently constituted House, it was held that the same test is applicable to reckless driving though what is risked - injury to the person or substantial damage to property - is different.
The actus reus of the offence of driving recklessly, contrary to ss 1 and 2 of the 1972 Act, is not merely driving without due care and attention but driving in a manner that creates an obvious and serious risk of causing physical injury to any other road user or substantial damage to property. The mens rea of the offence is driving in such a manner without giving any thought to the risk or, having recognised that it exists, nevertheless taking the risk. It is for the jury to decide whether the risk created by the accused’s driving was both obvious and serious, the standard being that of the ordinary prudent motorist as represented by themselves
We then move on to Elliott v C  2 All ER 1005, which to jog your memory is about children lighting a fire in a shed.
On the true construction of s 1(1) of the Criminal Damage Act 1971 an accused may be convicted of the offence of 'being reckless as to whether … property [belonging to another] would be destroyed or damaged' if the risk of damage or destruction of the property must have been obvious to a reasonably prudent man, even though the particular accused had not thought of the risk, and by reason of some factor such as his age, lack of understanding, lack of experience or exhaustion it would not have been obvious to him had he thought of it. Thus, if a 14-year-old girl sets fire to a shed by pouring white spirit onto the shed floor and throwing a lighted match onto the spirit, she is guilty of an offence under s 1(1) of the 1971 Act notwithstanding that because of her age and lack of experience in dealing with inflammable liquid she would not have appreciated the risk that the shed and its contents would be destroyed if she had given thought to the matter
We then move on to the very latest cases of Reid  1 WLR 793, and Adomako  3 WLR 288.
Chapter 4, 'Some Problems with Definitions of Theft', leads very quickly into a erudite discussion of the test of dishonesty and inevitably straight into the case of Ghosh  2 All ER 689.
My training as a Police Officer began in October 1968 and I therefore never had to learn the Larceny Act 1916, a fact of which I was constantly reminded of by older colleagues who described the basic definitions under that Act as a nightmare to recall, 'off the top of the head'.
A Police Officer has to learn definitions verbatim from memory. Police Officers from my generation will quote you word perfect anything from a hundred definitions or more.
The book describes the background of the Criminal Law Revision Committee’s attempt to make the law more intelligible to juries. The Theft Act 1968, Sec 2 (1), does not define dishonesty, rather it tells us what is not dishonest, a neat trick that – it really had us young raw recruits wondering what we had let ourselves in for, and it got more complicated in exams trying to remember it without the benefit of actual statutes, all you had was your memory.
In Feeley  1 All ER 341, they started talking about 'the current standard of ordinary decent people', and then we had 'subjective' or 'objective' - phew!
This is a very valuable contribution to the arguments about recklessness and the test for dishonesty, which academics and law students will value. Police Officers will of course wish to adhere to the basics, unless of course they are taking a degree.
Author: Edited by Ido Weijers & Antony Duff
Publishers Hart Publishing Ltd
Price: £30 RRP UK
Publication Date: 2002
In Illinois USA the special juvenile court was created in 1899. Since then, juvenile justice has had a chequered history, and is now more controversial than ever.
Should our treatment of young offenders differ in its aims or principles from that of adult offenders?
What role should ideas of punishment or retribution play?
Should our aims be rehabilitative and educative rather than punitive?
Should we divert young offenders from the criminal justice system altogether, opting for 'restorative' rather than 'retributive' justice?
These questions are addressed in this interdisciplinary volume, which brings together criminologists, educationalists, psychologists and philosophers.
Part I traces the history of juvenile justice, identifying patterns, and signs of what the future might hold.
Part II tackles fundamental normative issues of punishment, moral education and restoration, with particular emphasis on the role of communication.
Part III attends to the role that such emotions as shame and guilt should play in juvenile justice, paying particular, and critical, attention to Braithwaite's conception of reintegrative shaming.
IDO WEIJERS is Associate Professor of Education at Utrecht University. He publishes widely on juvenile justice, in particular on its history ('The Double Paradox of Juvenile Justice', 1999) and theory (Schuld en schaamte: Een pedagogisch perspectief op het jeudstrafrecht, BSL, 2000). He has been working on the issue of punishment and education ('Punishment and Upbringing', 2000) and his recent research interests include juvenile court traditions and restorative justice for juveniles.
Chapter 3 "Recent changes in Youth Justice Policy in England and Wales" will be of interest to police officers working within those jurisdictions. The 1969 Children and Young Persons Act was a radical piece of legislation when your Reviewer joined the service in 1968 - this chapter traces the history from then to the present day; from welfare to crime control.
ANTONY DUFF is Professor of Philosophy at Stirling University. His work focuses on philosophy of criminal law, in particular on penal theory (Punishment, Communication, and Community, OUP, 2001) and on the normative foundations of criminal liability (Criminal Attempts, OUP, 1996), See www.rjerrard.co.uk/law/oup3.htm He has recently been working on the relation between restorative justice and punishment.
Restorative Justice for Juveniles
Author: Edited by Gabrielle Maxwell & Allison Morris
Publishers Hart Publishing
Price: £17.99 RRP UK paperback
Publication Date: 2003
Internationally, there is now an acceptance of the need to develop new strategies in criminal justice which reflect restorative justice principles. At the same time, theory, research and practice in restorative justice is making rapid advances. This book provides an up to date and critical account of recent developments. It describes the practice of restorative justice with respect to young offenders
in a number of jurisdictions - Australia, Canada, England, New Zealand, South Africa, the United States and various continental European countries. Research findings on the three most common formats - conferencing, victims offender mediation and circles - are presented. Critical issues for the future development of restorative justice are identified. Two main themes run through the collection - the potential of restorative processes to transform criminal justice processes and the potential for aboriginal or indigenous communities to impact on conventional processes. Contributors include active researchers and leading theorists from around the world.
Childright’s Review said of it, ". . . provides an up-to-date and critical account of recent developments in the rapidly advancing field of restorative justice..a thought provoking collection of papers from researchers and leading theorists from around the world. It will be of interest to all those who work in the youth justice field. "
Gabrielle Maxwell is a Senior Research Fellow at the Institute of Criminology at Victoria University in New Zealand.
Allison Morris was formerly Professor of Criminology at the Victoria University, Wellington, New Zealand.
Authors: Daniel Friedmann & Dr. Daphne Barak-Erez
Publishers Hart Publishing
Publication Date: 2003
TRADITIONALLY, the theory of human rights limited its application to the public domain, namely the relationships between individuals and public authorities. The great expansion of human rights legislation and concepts in modern national and international law has given rise to a major issue relating to their potential impact on private relationships. This book examines this important topic, which may revolutionize private law. It presents new approaches which strive to broaden the application of human rights to the private field on the ground that power can be abused and human rights can be infringed even when all parties are private. The subject is examined from theoretical and comparative perspectives by leading scholars representing a diversity of legal systems - the United States, Canada, England, South Africa, Germany and Israel. Among the contributors are Professor Todd Rakoff (Harvard), Professor Roger Brownsword (Sheffield), Professor Hugh Beale (Warwick) and Professor Ewan McKendrick (Oxford), Professor Ernest Weinrib and Professor Lorraine Weinrib (Toronto), Professor Christian Starck (Gottingen), Professor Andreas Heldrich (Munich) and others.
Daniel Friedmann is a member of Israel Academy of Sciences and Humanities, and Danielle Rubinstein Professor of Comparative Private Law, Tel-Aviv University.
Dr. Daphne Barak-Erez is Deputy Dean of the Faculty of Law, Tel-Aviv University and the Director of the Minerva Centre for Human Rights.
Author: Peter Alldridge
Publishers Hart Publications
Price: £40 RRP UK
Publication Date: 2003
In The Past twenty years action in respect of the profits of crime has moved rapidly up the criminal justice agenda. Not only may confiscation orders be made, but there are also now serious substantive criminal offences of laundering the proceeds of crime. Moreover, the consequences of the regulatory regimes put in place by the Money Laundering Regulations 1993 and the Financial Services Authority are very significant. This book examines critically the history, theory and practice of all these developments, culminating in the Proceeds of Crime Act 2002, which marks another step in the move towards greater concentration both on the financial aspects of crime and on the internationalisation of criminal law. The Act puts in place the Assets Recovery Agency, which will be central to the strategy of targeting criminal monies and will have power to bring forfeiture proceedings without a prior criminal conviction and to raise assessments to taxation. The author subjects the law of laundering, especially the novel aspects of the Proceeds of Crime Act itself, to thorough analysis and a human rights' audit.
This book deals with a range of legal mechanisms that are directed towards the proceeds of crime. They are confiscation, ‘civil recovery’ and taxation of those proceeds, together with the offences of criminal money laundering and, so far as relevant, the more ancient power of forfeiture. The law of England and Wales has come a long way since Cuthbertson in 1979 (R Cuthbertson  2 ALL ER 401). Twenty years ago, a person making profits through the commission of crime was liable to be punished, but not, without more, liable to disgorge the profits to the State. Taxation of the proceeds of crime was little more than a theoretical possibility. Such a person could walk into a bank, announce that s/he wished to open an account, fill in a form and deposit some cash. No identification was called for and if the client chose to hold the account and to supply specimen signatures in the name ‘Donald Duck’ that was perfectly acceptable. The bank's only concern was to ensure that the person who made withdrawals from the account was the same person as the person who opened it. To do that, there was no need for the bank to know the client's real identity. This book traces the development of the law on the first phenomenon, and its impact upon the second. It deals primarily with substantive and procedural criminal law, including the law of forfeiture and confiscation. Because of the link to financial institutions, however, it has been necessary to include some consideration of the civil law and of the regulatory framework. Confiscation and forfeiture provisions were criminal law at the margins. They are now at centre stage in the formulation of domestic criminal justice policy, in the moves for the internationalisation of criminal law and in the prosecution of a war.
The book is, in part then, a criminal law emergence study, but it also attempts two other tasks. The first is to examine the supposed rationales for the legal responses to proceeds of crime. This is particularly important at a time when money laundering has come to be blamed for many of the evils of the world. The law has developed piecemeal, and so justificatory accounts have to be constructed and tested. The book will suggest that the bases upon which forfeiture is permitted should, in principle, be much more limited than those currently embodied in English Law, that confiscation going beyond the profits acquired by a criminal from crime is unjustified, and that special attention needs to be given to the relationship between, on the one hand, taxation and, on the other the seizure of the assets of criminals. The second is to generate a human rights audit of the current state of the law of confiscation and forfeiture. Confiscation and forfeiture provide many important tests for the Human Rights Act 1998, and the judicial responses to confiscation and forfeiture cases brought under the Act are indicators of the wider response in the relationship between executive, legislature, courts and human rights. The refusal of the courts or Parliament to engage with strong arguments against forfeiture in many forms and or to provide principled limitations to confiscation, whether or not they are categorised as human rights arguments, is a continuing source of bemusement. I am not starry-eyed about the Human Rights Act, but it does have important attributes. First, notwithstanding that it has not been amended significantly to adapt to changes over 50 years, it does provide a relatively coherent standpoint from which to make a liberal critique of any criminal justice system. Secondly, although the interpretations that have been placed on it by courts have frequently disappointed the liberal, it does at least provide arguments to which the courts of England and Wales must respond. Thirdly, the same Government is responsible for the Proceeds of Crime Act 2002 as for the Human Rights Act 1998. It is not unreasonable to want to hold it to its own professed precepts. The citique is liberal in the uncomplicated sense that I believe in the rule of law, rights, democracy and the elimination of status-derived inequality.
Collection of material for the book ceased on 1 August 2002, but I have tried to state the law as at the date (as yet, unknown) upon which the Proceeds of Crime Act 2002 will come into force. In fact, most provisions of the Act will only apply to offences committed after that date, and it will take a good deal of time for the old law fully to be worked out of the system. The Drug Trafficking Offences Act 1986 was replaced by the Drug Trafficking Act 1994, but the courts were still dealing with cases to which it applied in 2001.2 Consequently, and also because a good deal of the law is unchanged by the 2002 Act, the book contains a good deal of reference to the law before 2003. The Proceeds of Crime Act 2002 is a long and complex piece of legislation and the book does not purport to give a comprehensive account of it. For such an account there is a range of alternatives.
The book deals with the law of England and Wales. There are analogous provisions dealing with Scotland and Northern Ireland. Parts of the book have been published in the Journal o f Money Laundering Control, Buffalo Criminal Law Review, British Tax Review and the Modern Law Review.
Title: Judging the Judges, judging Ourselves.
Author: David Dyzenhaus
Publishers Hart Publishing
Price: £12.99 RRP UK paperback with amendments
Publication Date: 2003 with amendments
In the Alberta Law Review, Vivian Grosswald Curran said of the book, "The Truth and Reconciliation Hearings, as rendered in Professor Dyzenhaus' book, capture the misery and suffering of a nation. Sometimes almost unbearable to read, it is a fascinating account of the human dimensions of law's effect ... the book is as much about hope as it is about pain ... Judging the Judges, Judging Ourselves is singularly effective in combining a scholarly dissection of legal issues with an underlying, passionate quest for justice. To this reader at least, it was a page-turner ..."
John P. McCormick (New York University Journal of Law and Social Change), said, "As legal fora increasingly lose direct state-related implementation power as a result of globalization and regionalization, judges will need to consider methods that pursue civil and social justice when actual implementation is likely to be imperfect or ineffectual. Judging the Judges, Judging Ourselves is an excellent contribution to considerations of this historical dilemma…" The Hon Sir Anthony Mason. Says, “The author subjects to sustained critical analysis fundamental concepts, such as judicial independence, parliamentary sovereignty and the rule of law, which go to the very heart of the judicial function ..." "This is a splendid book."
Christine Sypnowich Oxford Journal of Legal Studies, says,
"Judging the Judges, Judging Ourselves underscores the imperative that, as the idea of equal citizenship takes root in the new South Africa, the links between social justice and procedural morality should be forged rather than assumed."
David Dyzenhaus is Professor of Law and Philosophy at the University of Toronto.
With a Foreword by the South African Minister of Water Affairs and Forestry, Kader Asmal. The Truth and Reconciliation Commission (TRC), established in South Africa after the collapse of apartheid, was the bold creation of a people committed to the task of rebuilding of a nation and establishing a society founded upon justice, equality and respect for the rule of law. As part of its mission, the TRC held called to account the lawyers - judges, academics and members of the bar -who had been crucial participants in the apartheid legal order. This book records and evaluates those hearings, in the light of theories of adjudication, the historical role of the judiciary and bar in the apartheid years.
PART of the FOREWORD
Most of us these days are reared to know the majesty of the law. It was law, at Nuremberg, that delivered German- from 'Nazism. And it was the loss of law, so vividly portrayed by Franz Kafka and others, that has been at the heart of 20th century totalitarianisms of all sorts. Again, certain celebratory traditions of United States legal history see U.S. constitutional as a kind of secular religion and as the ultimate source of that nation's enduring strength: for better or worse, the major internal political struggles in America have been fought in the idiom of the law as the phrase "civil rights" indeed suggests. Among the countries of the South, decolonisation after World War Two has meant a proliferation of constitutional experiments reflecting the new rulers' undiminished faith in legal solutions to the large problems of creating humane societies. Somehow, law is that to which we turn, these days, for collective self-expression even if, by collective self-expression, mean the right to be off, by ourselves, in the dignity of private dissent or eccentricity.
And yet, everywhere, the law has had another face. It is a familiar story: liberty for some alongside slavery for others; gulags alongside high-sounding declamations about equality; property rights alongside impoverishment and despair. If it is in the nature of Gods to disappoint, then certainly the deities of law have been no exception.
In South Africa, this disappointment-the distance between law's humanistic promise and its workaday betrayals-has been particularly stark over the last four decades.
This book presents an account of three days of South Africa’s Truth and Reconciliation Commission.
Title: The Verdict of the Court: Passing Judgment in Law and Psychology
Author: Jenny McEwan
Publishers Hart Publishing
Price: £35 RRP UK
Publication Date: 2003
Courts are constantly required to know how people think. They may have to decide what a specific person was thinking on a past occasion; how others would have reacted to a particular situation; or whether a witness is telling the truth. Be they judges, jurors or magistrates, the law demands they penetrate human consciousness. This book questions whether the 'arm-chair psychology' operated by fact-finders, and indeed the law itself, in its treatment of the fact-finders, bears any resemblance to the knowledge derived from psychological research. Comparing psychological theory with court verdicts in both civil and criminal contexts, it assesses where the separation between law and science is most acute, and most dangerous.
Central Issues in Criminal Theory
Author: William Wilson
Publishers: Hart Publishing
Publication Date: 2002
Part of Author’s Preface
As George Fletcher has remarked recently these are good times for the theory of criminal law. Not only has there been an enormous upsurge of interest in the philosophical foundations of criminal law, but the quality of much of the work is of a very high order and is filtering through into the doctrinal expositions of textbook writers. Even judges are taking note of it. This unparalleled co-operation between judges, commentators and theorists of criminal law present an indication, frustrating at times, that traditional walls between the law presented in textbooks and the social practice of law can be broken down.
I have set myself the task of contributing to this process of communication by highlighting some of the key issues upon which criminal theory seeks to cast its light. The desire to advance communication has important ramifications both for the content of the book and for the way it is written. Criminal theory, in so far as it attempts to chart the philosophical foundations of criminal law, is not an easy subject to grasp or indeed to communicate. True understanding of any phenomenon demands that ideas concerning it are tempered in the fire of argument and counter-argument. Paradoxically, therefore, the very process %N-hereby understanding is achieved is a process capable of interfering with the communication of ideas. It is easy to lose the thread of an argument and its significance when it is forever being tested for weaknesses. Much of what is good in contemporary criminal theory runs this communicative gauntlet. It takes it as read that the reader possesses both the doctrinal knowledge and philosophical sophistication to hit the ground running as it were. As a result, the potential audience for important new ideas and insights is unavoidably squeezed. I have tried, therefore, to ensure that as many channels of communication as possible are kept open by keeping this book relatively short, and by assuming no prior knowledge or significant degree of philosophical sophistication. I have also kept supporting arguments to a minimum, trusting in the intelligent reader to fill in the argumentative gaps where necessary. I do so in the hope that any resulting deficit in depth of analysis is compensated for in the coherence and clarity of the views presented. So as to keep criminal lawyers on board who, I make no
apology, are my primary target I make substantial use of hypotheticals and, perhaps a touch more than is usual in works of this kind, of material commonly found in criminal law textbooks.
The general organisational dynamic of the book largely takes care of the choice of issues. The obvious starting point for any attempt to make sense of criminal law is punishment. It is this phenomenon, after all, which generates much of the impetus to rationalise, evaluate, and also attack the premises giving rise to criminal liability. I consider early on the justification for punishment, which is centred, unremarkably, in desert. This notion of desert and the many contradictions it gives rise to inevitably raises issues concerning the structure of criminal liability which in turn uncovers other issues. What makes punishment deserved? Rule-breaking? Culpable wrongdoing? What makes for wrongdoing? What makes wrongdoing culpable such as to warrant punishment? And so on.
Certain stylistic features of the book are worth commenting upon. I have consciously constructed the book in terms of layers of increasing complexity. Each chapter begins with an accessible introduction to the area under consideration so as to afford a firm foundation for considering the issues or challenges identified for discussion. The book itself is structured so as to allow later chapters to build upon the knowledge and insights gleaned earlier. The practical effect is a progressive ratcheting up of the level of complexity on the assumption that once basic premises and other recurrent themes are understood the reader will need less guidance finding her way around the specifics of the individual chapter. Beginners will probably find it beneficial, therefore, to read the book sequentially; chapters 10 and 11 are an altogether different kind of read than chapters 1, 2 and 3, which are of a more introductory character. By constructing the book in this way I have sought to deliver a book which on one level is capable of working as a primer while on another offers something of interest to those already familiar with the terrain.